K-Lines, Inc.

84 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD General Teamsters Local 162, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and K-Lines, Inc. Case 36-CB-859 April 25, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on November 9, 1979, by K- Lines, Inc., herein called the Employer, and duly served on General Teamsters Local 162, Interna- tional Brotherhood of Teamsters, Chauffeurs, War- ehousemen and Helpers of America, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 19, issued a complaint on December 17, 1979, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(3) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on or about September 23, 1979, the Employer and Respondent reached full and complete agreement with respect to terms and conditions of employment for employ- ees in the appropriate unit' to be incorporated in a collective-bargaining agreement between the Em- ployer and Respondent and that, since on or about November 9, 1979, Respondent has failed and re- fused to execute a written contract embodying that agreement, although the Employer has requested it to do so. Respondent failed to file a timely answer to the complaint. On January 16, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment with exhibits attached. Subse- quently, on January 23, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Coun- sel's Motion for Summary Judgment should not be granted. Respondent has filed no response to the Notice To Show Cause and, accordingly, the alle- gations of the Motion for Summary Judgment stand uncontroverted. The unit is: All truckdrivers, receiving and shipping employees, checkers, pack- ers and order fillers, freight unloaders and loaders, warehousemen, and fork-lift drivers excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. 249 NLRB No. 19 By telegram dated February 7, 1980, Teamsters Local Union No. 81, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein referred to as Local 81, filed a motion to intervene and opposition to the Motion for Summary Judgment. Local 81 confirmed its motion and opposition by formal written docu- ments and concurrently filed an answer to the complaint.2 Thereafter, the Employer and General Counsel filed oppositions to Local 81's motion to intervene, and Local 81 filed a response thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. With respect to the motion to intervene, Local 81 argues that it has an interest in the instant pro- ceeding because it, and not Respondent, is the au- thorized representative of the Employer's truck- driver employees. We cannot agree. Local 81's claim is grounded upon a decision of Teamsters Joint Council No. 37, affirmed by the General Ex- ecutive Board of the International, awarding juris- diction over the Employer's drivers to Local 81, rather than Respondent. The Joint Council's award, however, is not binding upon the Board. See Local 814, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (Morgan and Brother-Manhattan Storage Co., Inc.), 223 NLRB 527, 530 (1976). Local 81 originally sought to bring its claim of representa- tion before the Board by the filing of unfair labor practice charges and representation petitions,3 but later chose to resolve the issue through internal union procedures and withdrew the charges and petitions. Despite the filing of its petitions, Local 81 does not claim to represent a majority of em- ployees in the unit awarded it by the Joint Council, let alone the larger unit represented by Respond- ent. To grant Local 81's motion to intervene would, in our opinion, undermine the Board's authority to determine the scope of an appropriate bargaining unit under Section 9(b) of the Act, and would frag- ment the unit. Moreover, there is no indication that the Employer ever approved of or was party to the proceeding before the Joint Council. Under these circumstances, and inasmuch as there is no conten- tion that Respondent's assertion of jurisdiction over 2 The deadline for receipt of responses to the Notice To Show Cause was February 6, 1980. Local 81, however, avers that it was previously advised that the hearing on the complaint was set for April 15, 1980, and that it did not learn of the Motion for Summary Judgment or the Notice To Show Cause until February 7, 1 day after the deadline for receipt of responses. In these circumstances, and inasmuch as only a minor -day delay is involved, we shall accept Local 81's documents and treat its motion to intervene on the merits. s Cases 36-CA-3462, 36-RC-4223, and 36-RC-4230. GENERAL TEAMSTER LOCAL 162 85 the ex-Transport Service drivers violated the Act in any manner, 4 we shall deny Local 81's motion to intervene in these proceedings. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions, Series 8, as amended, provides as follows: The respondent shall, within 10 days from the service of the complaint, file an answer there- to. The respondent shall specifically admit, deny, or explain each of the facts alleged in the complaint, unless the respondent is without such knowledge, in which case the respondent shall so state, such statement operating as a denial. All allegations in the complaint, if no answer is filed, or any allegation in the com- plaint not specifically denied or explained in an answer filed, unless the respondent shall state in the answer that he is without knowl- edge, shall be deemed to be admitted to be true and shall be so found by the Board, unless good cause to the contrary is shown. The complaint and notice of hearing issued on December 17, 1979, and duly served on Respond- ent on the following day, specifically states that unless an answer to the complaint is filed by Re- spondent within 10 days from the service thereof "all of the allegations in said Complaint shall be deemed to be admitted to be true and may be so found by the Board." According to the record herein, and the uncontroverted allegations of the Motion for Summary Judgment, on December 21, 1979, counsel for the General Counsel notified in writing Respondent's attorney of record that an answer to the complaint was due December 27, 1979, and that if no answer were received by Janu- ary 4, 1980, the General Counsel would be com- pelled to seek summary judgment on the pleadings. Respondent neither filed an answer nor responded in any way to the General Counsel's communica- tion. On January 16, 1980, counsel for the General Counsel filed the Motion for Summary Judgment herein, and on January 23, 1980, the Board issued a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent did not file a response to the Notice To Show Cause. No good cause to the con- trary having been shown, in accordance with the rule set forth above, the allegations of the com- 4 We reject Local 81's contention that this proceeding should be re- manded for hearing in light of the Employer's filing of 8(b)(l)(A) charges in Case 36-CB-881 against Local 81, Respondent, the Joint Council, and the International. Those unfair labor practice charges are irrelevant to the instant case. plaint are deemed to be admitted and found to be true. Accordingly, we grant the Motion for Sum- mary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The Employer, an Oregon corporation with its principal place of business at Lake Oswego, Oregon, is and has been at all times material herein engaged in the business of interstate transportation of bulk commodities by truck. During the past 12 months, which period is representative of all times material herein, the Employer derived gross reve- nue in excess of $50,000 for the transportation of bulk commodities from the State of Oregon direct- ly to points outside the State of Oregon. We find, on the basis of the foregoing, that the Employer is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Respondent is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Unit At all times material herein, Respondent has been, and is now, the lawfully designated exclusive collective-bargaining representative of the follow- ing appropriate unit of the Employer's employees: All truckdrivers, receiving and shipping em- ployees, checkers, packers and order fillers, freight unloaders and loaders, warehousemen, and fork-lift drivers excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. B. The 8(b)(3) Charge On or about September 23, 1979, the Employer and Respondent reached full and complete agree- ment with respect to terms and conditions of em- ployment of the employees in the above-described unit to be incorporated in a collective-bargaining agreement between the Employer and Respondent. Since on or about November 9, 1979, the Em- ployer had been demanding, and is demanding, that Respondent execute a written contract with it em- bodying the agreement described above. Since on GENERAL TEAMSTER LOCAL 162 85 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or about November 9, 1979, Respondent has failed and refused, and is failing and refusing, to execute that written contract. Accordingly, we find that by the aforementioned conduct Respondent has since on or about Novem- ber 9, 1979, and at all times thereafter, refused to bargain collectively with the Employer, and that by such refusal Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(b)(3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the oper- ations described in section 1, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(3) of the Act, we shall order that it cease and desist therefrom and, upon request, execute the collective-bargaining agree- ment of September 23, 1979, between it and the Employer. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. K-Lines, Inc., is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. General Teamsters Local 162, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All truckdrivers, receiving and shipping em- ployees, checkers, packers and order fillers, freight unloaders and loaders, warehousemen, and fork-lift drivers; excluding office clerical employees, profes- sional employees, guards, and supervisors as de- fined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. By refusing on or about November 9, 1979, and continuing to date to refuse to execute a writ- ten collective-bargaining agreement between it and the Employer as agreed on September 23, 1979, covering the employees in the above unit, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, General Teamsters Local 162, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Portland, Oregon, its offi- cers, agents, and representatives, shall: 1. Cease and desist from refusing to bargain col- lectively in good faith with K-Lines, Inc., by refus- ing to sign the collective-bargaining agreement of September 23, 1979, or from engaging in any like or related conduct in derogation of the statutory duty to bargain. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) On request by K-Lines, Inc., execute the con- tract with it that was agreed upon on or about Sep- tember 23, 1979. (b) Post at it business offices and meeting halls copies of the attached notice marked "Appendix." s Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Furnish the said Regional Director with suffi- cient signed copies of the aforesaid notice for post- ing at the premises of K-Lines, Inc., if it is willing. (d) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 5 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an order of the National Labor Relations Board." - ----- --- GENERAL TEAMSTER LOCAL 162 87 APPENDIX NOTICE To MEMBERS AND EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively in good faith with K-Lines, Inc., by refusing to sign the collective-bargaining agreement to which we agreed on or about September 23, 1979, and WE WILL NOT engage in any like or related conduct in derogation of our statutory duty to bargain. WE WILL, if requested by K-Lines, Inc., ex- ecute the contract on which we reached agree- ment on or about September 23, 1979. GENERAL TEAMSTERS LOCAL 162, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMER- ICA